USA > South Dakota > Minnehaha County > History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources Synopsis of public records, biographical sketches > Part 22
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The next legislation upon this subject was an act approved Jan- uary 8, 1868, by which a license to run for a period of not less than six months was required for the sale of intoxicating liquors in any quantity less than a quart. It was also made the duty of the county board, at each term of the district court, to deliver to the grand jury a list of all licensed persons, and the grand jury were directed to in- dict all persons engaged in selling intoxicating liquors without a license. An important feature of this act was the repeal of that por- tion of the law of 1864 by which groceries were classified with saloons.
The legislature on the 10th day of January, 1873, passed "An act to provide against the evils resulting from the sale of intoxicating liquors in the Territory of Dakota," which went into effect in July of the same year. The first section of this act declared it to be unlaw- ful for any person without having first obtained a license, to sell in any quantity intoxicating liquors, to be drank in, upon or about the premises where sold, and that no person should be granted a license without first giving a bond in the sum of three thousand dollars, with two good sureties, conditioned that he would pay all damages to any person or persons, which might be inflicted upon them, either in per- son or property, or means of support, by reason of the person so ob- taining a license, selling or giving away intoxicating liquors.
By this act it was made unlawful to sell to minors, or to cause the intoxication of any person; and all the property of the person selling intoxicating liquors, real and personal, was made liable to seizure and sale to pay any fine or judgment against the person, for the violation of the law. At the same session of the legislature, it was made unlawful to sell or give away any intoxicating liquors on the day of any general or special election.
On the 15th day of January, 1875, the legislature passed an act amending the laws enacted in 1868 and 1873. Under this law, one of the conditions of the bond to be given by the person obtaining a li- cense was, that he would keep a quiet and orderly house, and that the bond given could be sued and recovered upon in a civil action for the use of any person injured by reason of the selling of intoxicating liquors by the person obtaining a license. It was also provided, that before the license should be granted, payment should be made in ad- vance. But the most important change was the provision making it competent and lawful for both the county commissioners of any
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county and also the mayor and city council of any town or city situ- ated therein, to require the payment of a license. Upon the adjourn- ment of the legislature of 1877, all the laws in reference to the sale of intoxicating liquors were in the revised political code.
By this code the amount of the bond required for the sale of intoxicating liquors, was reduced from three thousand to five hun- dred dollars, and one of the conditions of the bond in addition to those before required was, that the place of business should "be closed at the hour of eleven-thirty o'clock P. M. every night." An- other new feature of this law was that after notice by any person to a county commissioner or mayor, that a relative was in the habit of getting intoxicated, and of whom he was in the habit of obtaining his liquor, it became the duty of the commissioner or mayor to notify such person not to furnish liquor to such habitual drunkard, and in case he did so, he was liable to a heavy fine, and also to pay the per- son causing the notice to be given, the sum of five hundred dollars for each offense. The amount to be paid for a license was left in the discretion of the county and city authorities, not to exceed three hundred dollars, nor less than thirty dollars, and both county and city license could be required and a city license could not be taken out without first taking a county license.
The territorial legislature in 1879, revised the whole law by the enactment of chapter 26, comprising 23 sections. The first section required a license to sell in quantities less than five gallons, and the amount to be paid for a license per year was left in the discretion of the authorities granting licenses, not to exceed five hundred dollars nor less than two hundred dollars. A bond was required in the sum of five hundred dollars, conditioned to keep a quiet, orderly house, not to permit gambling, and to close at eleven o'clock P. M. every night. The liabilities imposed for selling to an habitual drunkard by former acts were retained. Every person causing the intoxica- tion of another person by the sale or giving away of intoxicating li- quors was made liable to pay for his care while intoxicated, and the person who became intoxicated was liable to a fine of not less than five nor more than twenty-five dollars.
Commissioners were made liable to fine for taking insufficient bonds, and every person selling in violation of the law was made liable to both fine and imprisonment.
Druggists were permitted to sell without license upon a physi- cian's prescription. It was not lawful to sell to minors, and the grand juries were enjoined to indict all persons violating the law.
The legislature of 1881 and 1883 made no change in the law, and the legislature of 1885 only prohibited the sale within one-half mile of any agricultural, horticultural or mechanical fair being held under the auspices of the territorial board of agriculture; within three miles of the University of Dakota; and within one mile of that part of the village of Iroquois and Denver, lying in the county of Kingsbury, during the time no license should be granted in Kingsbury county.
The legislature of 1887 made no changes in the law of any ac- count, except to raise the maximum fee for a license from three to eight hundred dollars.
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The first innovation upon the practice of regulating the sale of liquors by license, except in isolated cases, was the enactment of the law March 11, 1887, providing for prohibition by local option.
This act provided for prohibition by counties. By its terms, whenever one-third of the legal voters petitioned the county board to submit the question of prohibition to the voters of the county, it be- came the duty of the board to do so at the next general election after the filing of the petition. Chapter 70 of the session laws of 1887, had no more than become the law of the territory, than the prohibi- tionists in Minnehaha county commenced to make the "wheels go round" under its provisions. The petition was obtained and sub- mitted to the board at its July session, 1887, and by the board very deliberately examined, resulting finally in an election being ordered to determine the question in November.
After the question had been settled that the people of Minnehaha county would have an opportunity to vote upon the question, the next thing in order of course came about -- a campaign for and against the measure. It was a campaign with some new features in it. Women for the first time in the history of the county went to the polls and labored industriously to obtain votes for the measure. When the canvassers were through with their labors, it was known that Minne- haha county was prohibition by a vote of 1,676 for, and 1,288 against. The City of Sioux Falls cast 745 for, and 453 against the measure. Prohibition had been established by law, and the next question was: What would it avail? It must be said that the prohibitionists. real- izing that a good many persons would be compelled to stop business at a loss not only of a daily revenue but upon their fixtures, very kindly and generously intimated by both acts and words, that those who would make a beginning towards closing the business of selling intoxicating liquors would not be unduly accelerated in their move- ments. This disposition was indorsed by a good many of the good people, but it was only a short time before it was evident that the lions were eating the lambs, and that closing up the business in this way would be a lingering experiment, to say the least. Active operations were commenced by way of injunctions. The forces rallied on both sides, and it was for a while a sort of rough and tumble fight. One case went to the supreme court and the state pre- vailed. After the law had been in operation a few months, the vio- lators became enboldened, and when it was decided by the county commissioners in July, 1889, to resubmit the question to a vote in November, all restraint seemed to be removed, and the law had a standing place only upon the statute book. The vote cast at the No- vember election was for the sale 2,314, against the sale 1,314, and this was the end of prohibition in Minnehaha county under the pro- visions of the local option law.
On the 22d day of February, 1889, the President signed the act providing for the admission of South Dakota as a state. This was no sooner done than the prohibitionists began to work for constitu- tional prohibition, and when the delegates to the constitutional con- vention assembled, it was soon evident that the question would be submitted to a vote of the people in some form.
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So desirous were the members of the convention that there should be a strong vote in favor of the constitution to be submitted by them, that the question of constitutional prohibition was submit- ted to a separate vote. The vote in the county upon this question was 2,244 in favor and 1,442 against. The vote in the state was 40,- 234 for and 34,510 against.
Article 24 of the constitution is as follows: "No person or cor- poration shall manufacture or aid in the manufacture for sale, any intoxicating liquor; no person shall keep for sale, as a beverage, any intoxicating liquor. The legislature shall by law prescribe regula- tions for the enforcement of the provisions of this section and pro- vide suitable and adequate penalties for the violation thereof."
The first session of the legislature of the State of South Dakota for the enactment of laws, convened January 7, 1890, and adjourned the 7th day of March following. One of the most important matters considered by that body was the framing of a law to enforce prohi- bition, and as a result of their labors we have chapter 101 of the ses- sion laws of 1890, comprising 36 sections, which took effect the first day of May following. It was unskillfully arranged and its meaning obscure, and it would seem that its authors, whenever in doubt just what to do, adopted the plan of covering the subject with blanket provisions, hoping that, in some way, a construction would be put upon them, calculated to destroy the traffic in intoxicating liquors.
Of course, it could not be expected, that the law would be a wise one in all respects, but there was no excuse for its unintelligible pro- visions in reference to jurisdictional matters, that must naturally arise in its attempted execution. While criticising it, it is but just to say, that its provisions were strong enough to make it a terror to evil doers, provided public sentiment had favored its enforcement. It is one thing to enact a law, and quite another to enforce it, and no intelligent person will have the courage to say that there is any other subject upon which penal legislation, here or elsewhere, has ever been enacted that is so dependent upon public sentiment for its exe- cution. The large interests involved, the desire for strong drink, the dislike by persons and communities to be dictated to in matters of this kind, all conspire to make the enforcement of prohibitory laws almost an utter imposibility in certain localities. Minnehaha county, and especially Sioux Falls, is one of those localities.
Soon after the first of May in 1890, proceedings were commenced in Sioux Falls with the view of closing the saloons. C. O. Bailey, then state's attorney, proceeded to take testimony in reference to the sale of intoxicating liquors, but in his innocence failed to subpoena before him such persons as had the required knowledge. It is in- teresting to know the different phases the defense has taken as time has progressed. At first the witnesses had drank in several places, but their recollection was dim as to when it was, possibly it was be- fore the first of May; it was whiskey and beer, but when it was, they could not remember.
The next attempt was made in September, 1890. Testimony was procured and injunctions brought against the Sioux Falls Brewery and about thirty saloons in the county before the first day of Jan- uary, 1891.
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Three or four informations were filed against persons, charging them with selling intoxicating liquors as a beverage, at the Septem- ber term of the county court in 1890. In all these proceedings, W. A. Wilkes, Esq., was associated with the writer in the prosecution, having been employed by the Sioux Falls Committee of One Hun- dred. In March, 1891, several informations were filed in the county court and jury trials had. In May following about a dozen indict- ments were found by the grand jury, charging persons with selling and keeping for sale intoxicating liquors. From that time until 1895, a few violations of the law were brought to the attention of the grand jury, and indictments found, and occasionally an effort would be made to close the saloons not only in Valley Springs, Garretson, Hartford, Baltic and Dell Rapids, but in Sioux Falls.
Right here we will devote a little space to the history of the Law and Order leagues that have been organized in Minnehaha county, especially those which were organized after statehood.
As soon as the prohibitory law had been enacted, both its friends and enemies looked upon Sioux Falls as the place where its efficiency would be determined. At a very early date the friends of the law in Sioux Falls organized a local league, a branch of the state league, which had been organized for the enforcement of the law, and every- thing was put on a war footing. Notwithstanding this organization, eighty-three citizens of Sioux Falls signed a call for a mass meeting, to be held on the 7th day of March, 1890, for the purpose of consid- ering the advisability of a still further local organization in aid of enforcement. This meeting was well attended, and the subject of the enforcement of the law was discussed in all its bearings. After a long session, a committee of five was appointed to draft a constitu- tion for the government of an independent local Law and Order league. The meeting adjourned until the 11th day of March, and on that day the committee presented the draft of a constitution to gov- ern a local Law and Order association "to aid in the enforcement of the laws of the state and the ordinances of the city." The work of the committee was unanimously adopted, and the association organ- ized with a full corps of officers.
It was about this time that a new feature was injected into the prohibition arena. The "original package decision," rendered by the United States supreme court, gave the liquor dealers power to practically evade the law, and they put on a bold front. The Val Blatz brewing company of Milwaukee put on the streets of Sioux Falls, for the delivery of beer in "original packages," a very fine red wagon, drawn by a very attractive pair of horses "togged out" in great shape. But the prohibitionists of the country went to the fountain head, and secured the passage by Congress of an act that took the "original package" feature off the field of battle.
But it is hardly within the scope of this work, and we will rest content with saving that in our opinion it is inexpedient and unwise to attempt by such organizations to aid in the enforcement of law, whether it be for the suppression of the sale of intoxicating liquors, the whipping of immoral persons, or the lynching of horse-thieves. Efforts of this character, when purely in aid of the local officials, are
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at best ephemeral in character, and when they subside and their stimulating influence is a thing of the past, it is impossible that the lawfully constituted authorities should not be carried back from their outposts with the subsiding wave.
But to return to the history of the enforcement of the law in Minnehaha county.
The trials to a jury upon informations and indictments were anything but satisfactory. In some cases where the testimony was overwhelmingly conclusive as to the guilt of the persons charged, and no attempt made to contradict the testimony, the jury acquitted or failed to agree. If the crime charged had been burglary, robbery or other crimes of like character, the testimony would have been am- ple, and a conviction would have resulted. However much such a state of facts was to be deplored, the fact remained that such was the condition of affairs in Minnehaha county during the attempted en- forcement of prohibition. In fact, the violation of the prohibitory law was, not looked upon by the public like the violation of any other law, and the verdicts of jurors will not rise above public sentiment, and no one but an unreasoning enthusiast will ever expect to enforce a prohibitory law without the aid of a strong, healthy public senti- ment in favor of it. The adverse public sentiment not only affects jurors, but it deters public prosecutors in the performance of their duties, and our judges are more or less influenced and intimidated in their actions by it. It was impossible to convict anyone charged with selling intoxicating liquors, unless he was friendless. In some cases where the defendant was known to be guilty of about every- thing else, and his character was known to the trial jury, a convic- tion was obtained and the minimum punishment inflicted, but in no other case was there a conviction, with one exception. The testi- mony upon the trials was usually given by either witnesses who were employed to get the testimony, or by those who testified unwillingly, and after four years of experience with them it is still an open ques- tion with the writer which class is the most available. It would be a hard matter to get together twelve jurymen who would believe the first class. There is a widespread prejudice against spotter testi- mony, as it is called, and verdicts of guilty upon the testimony of "spotters" are not returned.
But how is it with the other class? They commence by knowing nothing, and the longer you interrogate them the less they know. Drive them into a corner and you will find that their eyesight is dim -their hearing hard-their sense of smell impaired, and as to their sense of taste, why, it never had been educated to discern liquids. Call their attention to buttermilk and molasses, and a ray of intel- ligence will brighten up their countenances for a moment, but name beer or whiskey, and they will become as expressionless as a graven image. And this is what public sentiment will do to a witness.
The nuisance feature of the law, was at first supposed to be an insurmountable obstacle in the way of maintaining a place of business for the sale of intoxicating liquors. An injunction upon the business and closing the doors, would at first blush seem to be a pretty ef- fectual remedy. But it did not prove to be very damaging to the
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liquor interests. Before proceedings could be commenced, testi- mony had to be procured, and it had to be clear and unequivocal that the premises sought to be closed were used for the sale of intoxi- cating liquors contrary to law. This would appear to be an easy matter, but instead of receiving assistance in obtaining testimony, every conceivable obstacle was thrown in the way of the prosecutor. An unwilling witness, as a rule, never tells the whole truth, and the portion left untold is just what is wanted. If. a "spotter" is em- ployed, he requires constant attention, and if his wants are not looked after by his original employer, he gets nourishment from the other side, and when you are ready to use him he is generally to be found in the camp of the enemy. For awhile, all the places closed belonged to innocent parties, and under the statute they proceeded at once to give bonds, that the premises should not be used for a vear in the liquor business, and got them released and the action abated. Some of the places enjoined would not sell at auction for ten dollars-the parties occupying them worthless-and when you closed one shanty, they would slide into another hen-house and set up business.
One of the circuit judges in the state held that a person en- gaged in the business of selling intoxicating liquors himself in his own building, could repent, pay the costs, give bonds for one year and be absolved. In short, have the injunction dissolved and the pro- ceedings abated. The platter had been pretty cleanly licked before, but this "lapped out the spoon."
Again, it was somewhat troublesome at times to get the neces- sary and legitimate costs paid. The county board, or rather a ma- jority of the members believing that nothing could come of attempted enforcement, were for the first two years adverse to expense being incurred in liquor prosecutions, and this made it unpleasant for the officials engaged in the work.
In 1893, the following request, signed by 256 citizens of Sioux Falls, was sent to the writer, then state's attorney:
"Hon. D. R. Bailey, State's Attorney of Minnehaha county:
"Dear sir :- We the undersigned, citizens and taxpayers of the City of Sioux Falls, Minnehaha county, do respectfully request that in the future you desist from suing out of court any writ or writs of injunction restraining the sale of liquors in this city, or taking any steps toward enforcing the present prohibitory law. We respect- fully suggest that your own experience in seeking to enforce such law must have convinced vou of the utter futility of such effort, and call your attention to the 'Fine System' so called, that is in opera- tion in this city, and venture the opinion that it is productive of far better results than the 'Hole in the Wall' system which prevailed prior to the institution of such Fine system. We call your attention to the large sums of money that have been expended in the attempt to enforce the prohibitory law, and request that no further burdens of this nature be imposed upon the citizens and taxpayers of this county."
The county commissioners on the 10th day of August, 1893. Commissioner Colton absent, passed a resolution (see proceedings of
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commissioners of that date) requesting the state's attorney to desist and refrain from bringing any action either civil or criminal under the prohibition act, unless fully satisfied that a conviction could be had; and also gave a little advice to the court in the matter. We do not refer to this for any other purpose than to show that there was an "irrepressible conflict" always being waged, whenever the ques- tion of prohibition was brought into the courts in Minnehaha county, and that the impression prevailed that it was impossible to enforce the law. That the utility of any law can be determined best by its en- forcement is conceded; that unwise or odious laws had better be re- pealed than evaded, will be conceded by all good citizens, and that it is not within the province of those appointed to enforce the laws to so manage as to make them a dead letter, will also be admitted; but notwithstanding all this, it is a fact that can not be controverted, that it is the laws, and only the laws, that meet with the approbation of the public, that are heartily and successfully enforced.
The legislature of 1895, submitted the question to a vote of the electors at the general election in 1896, whether article twenty-four of the constitution should be repealed. The prohibitionists at once began active work to defeat the proposed amendment, and, on the other hand, those in favor of thelicense system were not idle. It was a well fought campaign throughout the state. The result was a vote 31,901 for, and 24,910 against the repeal. At the next session of the legislature (1897) a high license law was passed. It is evident that the law makers intended to cover the whole field of licensing, re- stricting and regulating the sale of intoxicating liquors in such a manner as to remove some of the most objectionable features that usually attend the retailing of intoxicating liquors as a beverage. It has several prohibitive clauses, namely:
No one who has served a term of imprisonment in the peniten- tiary can obtain a license, and no one convicted of keeping a dis- orderly house after the enactment of the law will be permitted to receive a license. No person under twenty-one years of age can ob- tain a license for selling intoxicating liquors, and no person without first obtaining a certificate signed by twenty-five legal voters residing in the precinct where he proposes to engage in business; "that he is a person of good moral character, and one who can be safely trusted to engage in the business or calling of selling intoxicating liquors at retail," and no person under twenty-one years of age can become a bartender in a saloon. It is made the duty of all venders of intoxi- cating liquors to keep the windows or doors of their respective places of business unobstructed by screens, blinds, paint, or other articles, and to have the windows so located that there may be an unobstructed view from the main street into the entire room, and no partitions, tables, chairs or seats are permitted in the place of business, and no games are allowed. All places where intoxicating liquors are sold are required to be closed on Sunday, and on all election days from six o'clock in the morning until six o'clock in the evening, and on each week day night from and after the hour of eleven o'clock until five o'clock the succeeding morning. It is made unlawful for any person to sell, furnish or give away any intoxicating liquors to any minor,
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